People v. Brown

• Citation: 77 Cal.Rptr. 438,272 Cal.App.2d 448
• Decision Date: 29 April 1969
• Docket Number: Cr. 3534
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lorelie BROWN, Arthur Ernest Lane and Barry Harris Leichtling, Defendants and Appellants.

Page 438

77 Cal.Rptr. 438

272 Cal.App.2d 448

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lorelie BROWN, Arthur Ernest Lane and Barry Harris Leichtling, Defendants and Appellants.

Cr. 3534.

Court of Appeal, Fourth District, Division 1, California.

April 29, 1969.

Rehearing Denied May 19, 1969.

Hearing Denied June 25, 1969.

John W. Porter, San Diego, for defendants and appellants Lorelie Brown and Arthur Ernest Lane.

Daniel B. MacLeod, San Diego, for defendant and appellant Barry Harris Leichtling.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Elizabeth Miller and Robert F. Katz, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

AULT, ^* Associate Justice Pro Tem.

In an indictment returned by the Grand Jury of San Diego County, the defendants, Lorelie Brown, Arthur Lane and Barry Leichtling were charged in Count One with transporting marijuana and in Count Two with possession of marijuana for sale. Before trial, defendants moved to suppress evidence under Penal Code, section 1538.5 and to set aside the indictment under Penal Code, section 995. These motions were denied. Later, each defendant withdrew his plea of not guilty to Count One of the indictment (transporting marijuana) and entered a plea of guilty to the lesser included offense of possession of marijuana. Count Two of the indictment was dismissed as to all defendants. Imposition of sentence was suspended, and each defendant was granted probation for a period of three years. They appeal from the order granting probation, and contend the search which disclosed the contraband resulting in their arrest and conviction was illegal and the motion to suppress evidence made under Penal Code, section 1538.5 was improperly denied.

Insofar as pertinent to this appeal, the facts and circumstances leading up to defendants' arrest are as follows:

On August 21, 1967, at approximately 11:00 p.m., the defendants were proceeding north on U.S. Highway 395, in an automobile owned and driven by defendant Lane. About five miles north of Escondido, the car was first observed by Deputies Embry and Peltier of the San Diego County Sheriff's Department. The car had a broken tail-light, in violation of Vehicle Code, section 25950. Because the road was narrow at this point, the deputies followed the car for about a mile, intending to stop it near an intersection where there was a wider pull-off area. During this interval, they noticed the car's tail-lights flicker, go completely out and then come on again. As they approached the intersection, Deputy Embry activated the red spot-light and the car ahead slowed down and began to pull to the right. Deputy Peltier turned the white spot-light on the interior of the slowing vehicle, and the officers saw the three defendants in the front seat of the car ahead of them. As the car slowed further and pulled further to the right, both deputies saw the driver lean forward, slightly to the right and down. The car continued to roll slowly to a stop about 100 yards beyond the point the deputies had intended to stop it.

Defendant Lane and Deputy Embry met at the rear of Lane's car. Embry obtained Lane's driver's license and gave it to Peltier who commenced running a name-check via the police car's radio. Meanwhile, Embry and Lane checked the car's tail-lights. In addition to the cracked lens, it developed that when the head-lights of the car were on and the brakes depressed, the tail-lights went completely out. Embry asked Lane if there had been any riot problems in his neighborhood or if he had had any difficulties with Negroes and questioned whether he carried firearms for his own protection. Lane answered these questions in the negative. Embry then asked Lane if he carried any weapons in the car and Lane replied that he did not. Embry asked Lane if he minded if he looked in the car in the area where he had been seated. Lane replied in words to the effect 'Yes, go ahead. I will get the keys to the trunk for you.' Embry said that this would not be necessary, proceeded to the passenger side of the car, asked the two other defendants to get out, and looked under the driver's portion of the front seat. He emerged from the car about 30 seconds later with a wax bag containing four marijuana cigarettes. Defendants were placed under arrest and a further search revealed more marijuana in a briefcase behind the front seat.

Approximately 5 to 10 minutes elapsed between the time the car was originally stopped and the arrest of the defendants. The officers did not receive a reply to the name-check on Lane until after the search and the arrest. The reply was negative.

Appellants concede, as they must, the original stopping of the car because of defective tail-lights was proper. They contend their detention, after they had satisfactorily identified themselves, was illegal, and since the consent to search followed an illegal detention, the consent was invalid and should be disregarded.

While there are constitutionally-imposed limitations upon the detention and investigation that police officers may make upon stopping a car for a minor traffic violation (People v. Moray, 222 Cal.App.2d 743, 35 Cal.Rptr. 432), we believe these limitations were not exceeded here. It has been held where a car is stopped for a traffic violation, it is not unreasonable to detain the occupants for a short period of time for the purpose of determining whether there are outstanding traffic warrants against the driver or other information relating to him in police records. (People v. Elliott, 186 Cal.App.2d 185, 189, 8 Cal.Rptr. 716; People v. Harris, 212 Cal.App.2d 845, 848, 28 Cal.Rptr. 458.) Here, the time between the original stopping of the car and the defendants' arrest was between 5 and 10 minutes. During that period, the brake and tail-lights were...